CRS Asks if Section 230 Should Apply to Websites’ ‘Algorithmic Recommendations’

Few courts have explored Section 230’s application to websites’ “algorithmic recommendations” in depth, reported the Congressional Research Service Thursday. But Congress “may consider” whether the broad Section 230 immunity currently recognized by courts “should apply to algorithmically sorted content or, alternatively, whether certain behavior or content should warrant different treatment under Section 230,” it said. Some members of the 117th Congress introduced several bills that would have addressed Section 230’s relationship with algorithmically sorted or recommended content, it said. Those bills “generally would have restricted the availability of Section 230’s protections” for platforms that recommend or promote certain content, it said. One of these bills, the Discourse Act, was reintroduced in the 118th Congress as S-921, it said. The free speech clause of the First Amendment “limits the government's ability to regulate speech,” said the report. Proposals that make Section 230’s protections unavailable for certain algorithmic operations “raise at least three questions,” it said. One is whether, if Section 230 is unavailable, hosting or promoting others’ speech on the internet “is itself protected under the First Amendment,” it said. If it is, the First Amendment “might restrict liability,” it said. A second question is whether modifying an existing liability regime “raises the same First Amendment concerns as enacting a law that directly prohibits or restricts speech,” said the report. A third question is, if such a proposal does raise First Amendment concerns, whether withholding Section 230’s protections for certain algorithmic operations affects speech based on its content, it said.